On January 23rd 2009, Ms. Kanagaratnam and her 3 minor children M. , G., A. claimed asylum at the passport control of the airport of Brussels (art.50ter law December 15th 1980). They were refused entry and ordered to be deported (art. 52/3 §2) because they claimed asylum without possessing a valid passport and visa (art. 2 §2). An order for their detention in the immigration center “127 bis” (Steenokkerzeel) for 2 months was taken (art. 74/5 §1 2o) because they claimed asylum without possessing a valid passport and visa.

On March 20th 2009, Ms. Kanagaratnam and her 3 children filed an application with the ECHR on the ground that their deportation to Sri Lanka via DRC will be a violation of article 3 of the Convention. They added that their detention was a violation of article 3 and 5-1-f) of the Convention. The Court requested the suspension of the deportation order (Rules art.39). On the same day, an order of detention of the family for 2 months was taken on the basis that they refused to board the plane to DRC.

On March 23rd 2009, the family filed a 2nd asylum claim. Immediately, another order of detention was taken for 2 months (art. 74/5 §1 2o). During their whole detention, the family made 2 requests to be released (art. 71§2) which were both denied by the appeal court of Brussels. The 2 appeals to the supreme court were also rejected. On May 4th 2009, the family was released by administrative decision. On September 2nd 2009, the family was granted refugee status by administrative decision of the Commissioner general for refugees and stateless persons (CGRA).

Mr. Tristan Wibault of the NGO Belgium Committee to Help Refugees (Comité Belge d’Aide aux Réfugiés) found the judgment to be a positive development of the case-law regarding the detention of asylum seekers.

On December 26th 2007, the law 1.343 introduced articles 60-1 to 60-12 on police custody in the code of penal procedure. Until then, police custody was not regulated by any law. Under these articles, the detention of a suspect in police custody can only be ordered by a police officer (art.60-2) and is supervised by the prosecutor general (art.60-1) who can release the suspect (art.60-3). The suspect should be brought before the prosecutor general within 24 hours of his arrest (art.399) who can order orally his detention for up to 6 days pending trial (up to 4 days not including weekends and labor holidays).

Bill 894 doesn’t introduce any requirement to bring the suspect promptly before a judge to rule on the lawfulness of the police custody and if needed to order his detention pending trial, in violation of article 5-3 of the Convention. The prosecutor general shouldn’t perform these functions because he will prosecute the suspect (judgment Huber v. Switzerland (12794/87) §42).

Article 6 of the bill 894 confirmed the possibility to extend police custody up to 4 days on request of the prosecutor general (art.60-4). Moreover, Bill 894 doesn’t forbid in the same investigation several police and prosecutor general custody of a suspect.

On July 28th 2011, Mr. G B.S a legal resident of Italy from India was arrested in the train station of Bordeaux while purchasing a train ticket to Italy. He was detained in police custody on the suspicion of being illegal in France (article L621-2 of the code of migration and asylum). On July 29th 2011, he was placed in the immigration detention facility of Bordeaux awaiting his deportation to Italy.

On August 4th 2011, Me Emmanuel Barast (Bordeaux) filed a criminal complain for “illegal arrest” (articles 432-4, 432-5 of the penal code) at the district attorney office of Bordeaux. The main suspects seems to be the police officer who placed Mr. G B.S in police custody and in the immigration detention center, the police chief of the detention center and the prosecutor Laplaud (Bordeaux) who controls the detention.

On May 28th 2011, the applicants submitted their case to the European Court of Human Rights arguing that their deportations to n/a will be a violation of articles 2 and 3 of the Convention. They added that the detention of their 7 months old baby in the immigration facility of n/a was a violation of articles 3 and 5-1-f). Finally, they complained that there was no proceeding to rule on the lawfulness of their detention and to release them if their detention was unlawful (habeas corpus), in violation of article 5-4.

In 1998, Ms. Marie-Claude Patoux was detained in a psychiatric ward following a personal conflict with her ex-doctor T. She became a fugitive after a temporary release at an unknown date. On December 17th 2002, she was condemned for a “premeditated assault with no bodily injury” (art.222-13 of penal code) on T. to 3 years of probation. In 2005, she was arrested again for “premeditated assault with no bodily injury“.

On March 29th 2006, she was arrested and detained in police custody being suspect of “premeditated assault with no bodily injury” on T. on the same day. On March 30th 2006, she was detained by an order of the mayor of Villiers-Saint-Paul under article L3213-2 of the code of public health. This order allows the detention for up to 48h, of patient suffering from mental illness who are “an imminent threat to public safety“. She was transferred to the notorious mental health center “CHI Clermont Oise” . On March 31th 2006, the prefect of Oise ordered her detention for one month in this health center, despite the lack of an eligible medical certificate, in violation of article L3213-1 of the code of public health.

On April 3rd 2006, the husband of the applicant filed a motion at the tribunal of Beauvais to have his wife immediately released . On April 26th 2006, the prefect of Oise ordered the detention of the applicant for 3 months. On May 14th 2006, the applicant became a fugitive for failing to return to the health center after an authorization of the prefect for a 2 days temporary release. On May 19th 2006, the judge denied the habeas corpus motion for release 46 days after the application.

On June 26th 2006, the applicant was condemned by the tribunal of Senlis to 12 months in jail for a “premeditated assault with no bodily injury” in 2005 and a warrant was issued for her arrest. On 30th July 2006, the prefect of Oise ordered the detention of the fugitive applicant for 6 months. On September 13th 2006, the applicant was arrested and detained at the jail of Beauvais pending trial at the appeal court of Amiens.

On January 31th 2007, the appeal court of Amiens ruled on the appeal. On February 5th 2007, the applicant was condemned by the tribunal of Senlis to 9 months in jail for a “premeditated assault with no bodily injury” on March 29th 2006. On October 17th 2007, the appeal court of Amiens condemned the applicant to a lesser sentence of 4 months in jail.

On May 19th 2008, the applicant was released from jail.

On August 21th 2006, the couple Patoux filed an application with the E.C.H.R arguing that the detention in the health center was a violation of articles 5-1-e) and 5-2, that the ruling on the motion for release from the ward was a violation of article 5-4, that the forced medication was a violation of article 8, that the applicant was not brought to a judge after her arrest in violation of article 5-3, and that the detention of the applicant in the jail of Beauvais with no access to health care, was in violation of article 3. They also complained that the rulings on the motion for release from jail pending trial was a violation of article 5-4. On June 30th 2009, the application was communicated to the agent of the French government with questions to be answered before 16 weeks. The applicants were not yet represented.

In June 2009, the national regulatory body for health centers (Haute Autorite de Sante) issued a report on the “CHI Clermont Oise“. It states that the condition of detention are degrading (21b) and that the patient consent into taking medications is not recorded (20a). A review was announced before November 2010. The mental health center didn’t answer our email for comments.

The Court found a violation of article 5-1-c) on the ground there was no law authorizing such detention. This case-law was confirmed in case Maire d’Eglise v. France (20335/04).

The Court found also a violation of article 5-4 on the ground there was no proceedings by which the lawfulness of this pre-charge detention could be decided and the release ordered if the detention was unlawful.

In February 11th 2004, the French parliament voted law 2004-204 which added articles 803-2 and 803-3 to the criminal procedure code. Under these articles, the pre-charge detention following police custody is authorized for up to 24 hours. This pre-charge detention is under the supervision of the prosecutor, in violation of article 5-1-c) according to a constant case-law of the E.C.H.R since 1979 confirmed in case Medvedyev v. France (3394/03) in paragraph 61-63.

No “habeas corpus” proceeding were created to allow suspects in pre-charge detention to have the lawfulness of their detention reviewed and to be released in case their detention was deemed unlawful.

This notice of the ministry of Justice confuses obviously article 5-4 and 5-3 of the Convention, and clearly don´t answer the clarification asked at the 987th meeting of 13-14 February 2007 (“However, it is not clearly apparent that persons thus detained may bring the matter promptly before a judge for determination of the lawfulness of their detention.”).

Today there is still no “habeas corpus” proceeding for detainees in police custody or in the cells of a tribunal, to determine the lawfulness of their pre-charge detention. This leads to numerous unlawful pre-charge detentions of up to 3 days, as demonstrated by one recent example.

On December 15th 2002, Ms. Yekaterina Popov arrived in France from Kazakhstan, to seek asylum. On June 10th 2003, her husband Mr. Vladimir Popov joined her. On January 20th 2004, they were denied refugee status by OFPRA. On May 31st 2005, their appeal to the CRR was rejected. On n/a another application for refugee status was made by the family.

On August 27th 2007, the applicants and their two children (five months and 3 years old) were arrested and detained in police custody on an investigation for “illegal stay“. Then they were detained in an hotel in Angers before being transferred to the immigration detention center of Rouen-Oissel.

On September 10th 2007, the applicants filed their application with the ECHR arguing a violation of articles 3, 5-1-f) and 8 of the Convention due to their detention with their children in police custody and in the immigration detention center. In addition they complained of the violation of articles 3 and 8 if they were to be deported to Kazakhstan. On September 12th 2007, the applicants and their children were released. On July 16th 2009, the CRR granted them refugee status.

It awarded the family €10,000 for moral damages and €3,000 for legal fees. The applicants were represented by Me Denis Seguin.

Surprisingly, the Court found no violation of article 5-4 for the parents on the ground that a judge ruled on the legality of their detention at the request of the immigration office. Under French code of migration and asylum, the parents were not entitled to take any proceeding by which the lawfulness of their detention shall be decided (habeas corpus). The Court also didn’t rule on the allegations of violations of the Convention during the detention of the family in police custody.